Introduction to Bangladesh Labor code, 2006
Code means those rules & customs of state by which the relation of employer and labourer is regulated in order to secure peace in the Industrial arena. In the eye of labour law, the capital & the labour both are equally important. In modern time, the basic purpose of Code is to create exclusive relation between capital & labour. There were many labour laws in previous but now it has only labour laws in Bangladesh. Which name is Bangladesh Labour Code, 2006. The Bangladesh Labour Code(herein after referred as the Code) is one of the very recent laws with major overhauling changes in the filed of labour legislation. The law governing labour relations is one of the centrally important branches of the law the legal basis on which the very large majority of the people earn their living. The level of the wages-nominal or real which is the vital issue can only be marginally influenced by legal rules and institutions. Marginal influence of the law on the people’s welfare depends on the products of people’s labour which in turn in very large extent the result of technical development. In the second place, it depends on the forces of the labour market on which the law has only a marginal (tough not a negligible) influence and thirdly on the degree of effective organization of the workers in trade union to which the law can again make only a modest contribution.<href=”#_ftn1″ name=”_ftnref1″ title=””>
Code concerns the inequality of bargaining power between employers and workers. Code(or “labor”, or “employment” law) is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In Canada, employment laws related to unionized workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made. However, there are two broad categories of labour law. First, collective Code relates to the tripartite relationship between employee, employer and union. Second, individual Code concerns employees’ rights at work and through the contract for work. The labour movement has been instrumental in the enacting of laws protecting labour rights in the 19th and 20th centuries. Labour rights have been integral to the social and economic development since the industrial revolution.<href=”#_ftn2″ name=”_ftnref2″ title=””>
Law is a technique for the regulation of social power. This is true of Codeas it is of other aspects of my legal system. Power –the capacity effectively to direct the behaviour of others- is on evenly distributed in all societies. There can be no society without subordination of some of its members to others, without command and obedience, without rule maker and decisions makers. The power to make policy, to make rules and make decisions and to ensure that those are obeyed is a social power. It is same supported and sometimes restrained and sometimes even created by the law but the law is not the principal source of social power.<href=”#_ftn3″ name=”_ftnref3″ title=””>
1.1 Purpose of Labour laws
Code is chiefly concerned with this elementary phenomenon of social power. And – this is important – it is concerned with social power irrespective of the share which the law itself has had in establishing it. As a social phenomenon the power to command and the subjection to that power are the same no matter whether the power is exercised by a person by public function or by a private person, an employer, a trade official. The subordination to power and the nature of obedience do not differ as between purely “social” or private and “legal” or public relations. It is a profound error to establish a contract between “society” and the “state” and in terms co-ordination, the other in terms of subordination. As regard labour relations, that error is fatal. In the society, there is unequal distribution of power but view of society about individual as equal. The law does and to some extent must conceal the realities of subordination behind the conceptual scream of contracts considered as concluded between equals.
Labour has a vital role in increasing productivity, and management has to help create condition in which workers can make their maximum contribution towards this objective. In free India, the labour movement and the trade unions should be in a position to assume larger responsibilities one of the main tasks in the five year plans is to evolve practical ways in which they can make an increasing contribution to national development and national policy. The growth of the public sector provides opportunities for working out new concepts of labour relations and the association of labour in management of industry<href=”#_ftn4″ name=”_ftnref4″ title=””>.
The principal purpose of labour law, is to regulate, to support and to restrain the power of management and power of organized labour. These are abstraction. In their original meanings the words, “management” and “labour” denoted not persons, but activities to plan and to regulate production and distribution, to co-ordinate capital and labour in the one hand, the activity to produce and to distribute on the other. But even if, by new common twist of language, “management” and labour” are used to denote not activities but the people who exercise them, they remain abstractions. The word “management” is always used to identify the individual or corporate body who in a give situation wields that power to define policy, to make rules and above all decisions, through whose exercise management manifests itself to those who are its subordinates. To manage means to command. The ambiguity of the terms “management” and labour if applied to persons rather than to activities is important that it means the relation between managers and those subject to managerial power.
To gauge the distribution of managerial power and to identify its location is not always an easy task. To trace the distribution of managerial power is a difficult task in any given society, no less difficult where the means of production are publicly owned than where they are privately owned. To find who has power our the side of labour is equally difficult.<href=”#_ftn5″ name=”_ftnref5″ title=””>
The individual employer represents an accumulation of material and human resources, socially speaking the enterprise is itself in Collective Power. If a collection of workers negotiate with an employer, this is a negotiation between collective entities, both of which are, or may at least be, bearers of power. But the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power.
The main object of Codehas always been to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship there can be no employment relationship without a power to command and a duty to obey. But the power to command and the duty to obey can be regulated. The characteristic feature of the employment relation is the individual worker is subordinated to the power of management but that the power of management is co-ordinate with that of organized labour. The regulation of labour results from combination of those agreed between him or his association and the union through collective bargaining.<href=”#_ftn6″ name=”_ftnref6″ title=””>
In the formulation of the rules which regulate the relations between employers and workers the common law has played a minor role. The courts have had a share, but only a small share in their evolution. For this there are number of reasons:
(a) The rules and principles in which we are interested are designed to govern the normal typical behavior at the parties. The rules which are needed in labour relations must word ex ante. They must direct people what to do or nit to do, before and not after they have acted, Case law operates ex-port, it does establish rules but not before something has gone wrong.
(b) The law is expected to have a share in the regulatior of normal behavior in relations between employers and employed.
(c) Rules governing labour relations are an attempt to mitigate the disequilibrium inherent in the employment relation.<href=”#_ftn7″ name=”_ftnref7″ title=””>
Labour Laws in Bangladesh before 2006
The present shape of Code has not been evolved by one day. It has been evolved day by day. The practice of Code was started for the first time in ancient Rome. For the first time in Rome, the charge of several professionals like: artist, doctor, animal farmer, were fixed. Then after thousands of year the present shape of law has evolved.
The first effective labour Legislation in this sub-continent is the Indian Factories Act, 1881. The act was passed on the basis on a report of Major Moore inspector-in-chief of the Bombay Cotton Department in 1872-73. It was Major Moore who, for the first time suggested for provisions in the legislature to regulate the working conditions in factories. After submission of the said report vis-à-vis on the pressure of the Merchants and moll-owners of UK the Factories Bill for India was placed in the British Parliament in 1874. The cause behind the etageres of the merchants of Lancashire for industrial laws in India was that they could make less profits than other British mill-owners who established mills and factories in Bengal or Bombay in India. Since raw materials and labour were cheaper in the sub-continent the merchants of Lancashire Mill-owners’ Association with a view to put some restrictions upon the working hours and service conditions in the Indian factories managed to place the bill and the Indian Factories Act, 1881 (Act No XV of 1881)was passed. The Indian Factories Act, 1881 applied to manufacturing establishments using mechanical power and employing 100 or more persons. Plantation industries were exempted from operation if the Act. Although provisions of the Act were far from satisfactory yet those, as the basement of factory legislation, played an important role in the field of labour and industrial legislation in the Sub-continent.<href=”#_ftn8″ name=”_ftnref8″ title=””>
The Act for the first time limited working hours of women workers to eleven hours a day. The age for employment of children in factories under age of seven year was prohibited. A weekly holiday for children was introduced and a restriction was imposed upon works of children at night.
After a lapse of 10 years the Indian Factories Act, 1881 was repealed by the Indian Factories Act, 1891 (Act XI of 1891). The British Government appointed a commission for India in 1890 who submitted report to the Government suggesting enactment of a new law. In the basis of the report of the commission the Factories Act, 1891 was passed, it applied to all factories employing 50 persons and using power, minimum age for employment of children was fixed at 9 years. Working hours of children was limited to 7 hours a day with half an hour rest. Working hours for women was restricted at 11 hours with 1-1/2 hours rest. Male workers were also provided a weekly rest. Half an hour rest in a day for male workers was also provided for in the Act.
The Factories Act 1891 was again repealed and replaced in 1911 by the Indian Factories Act, 1911 (Act XII of 1911). The Act put restrictions upon daily works of male persons. An adult male worker’s maximum hours of work was fixed at 12 hours and that of children at 6 yours a day in textile industries. Seasonal factories were brought to the ambit of factory laws. The Act contained extensive provisions for health and safety and effective inspection of the administration of the factories.
Establishment of the International Labour Organization (ILO) in 1919 is an epoch making event in the history of Labour legislation. British India as a member country of the ILO amended the Factory Law in 1922. By the amendments, all Industrial undertakings using mechanical power and employing 20 or more persons were brought under the Act. Hours of work irrespective of gender were fixed at maximum 9 hour a day and 60 hours a week. One hour rest was granted to workers, for works exceeding 6 hours. Minimum age of children for work was fixed at 12. Payment at a rate of 1-1/2 times of normal wages was provided for overtime work. Employment of women and children under 18 years of age were prohibited in dangerous process. The Factories Act 1911 underwent some amendments in 1922,1926 and 1931 and finally the Act was repealed and replaced in 1934.
The Royal Commission on Labour’ was appointed by his Majesty the King Emperor in 1929 to enquire into and report on the existing conditions of labour in industrial undertakings and plantations in British India in the health, hygiene efficiency and standard of living of the workers and on the relations between the employer and the employed and to make recommendations. The commission examined the above aspects and submitted report in 1931. The commission in its reports interalia, made several important suggestions for amending of the factories Act. employer and the employed and to make recommendations. The commission examined the above aspects and submitted report in 1931.The commission in its reports interalia, made several important suggestions for amending of the Factories Act.
Mainly in the basis of the recommendations of the Royal Commission on labour the Factories Act, 1891 was repealed and altogether a new and comprehensive Act viz, the Factories Act, 1934 (XXV of 1934) was passed . The major objects of the Act was to reduce the hours of work,improve working conditions provide adequate inspection etc. The Factories Act, 1934 covered all manufacturing establishments and using power and employing 20 or more persons. Seasonal and perennial factories were distinguished, 54 hours of work per week and 10 hour works a day in perennial factories for adults and 60 hours per week in seasonal factories were provided. Hours of work of children was reduced. New category of worker named ‘adolescent’ workers was introduced Certificate of fitness for employment of child worker was made compulsory. Double employment of children was prohibited. Restriction was imposed upon right work of women and children. Payment of overtime allowance@1-1/2 times of ordinary rate of wages retained. Provisions for health and safety have been amplified. Contravention of any of the provisions were made punishable, Minor changes in the Factories Act 1934 was made by amending the Act in 1937, 1940,1941,1944,1945 and in 1946.
During the Pakistan regime the Factories Act, 1934 continued up to1965. The then East Pakistan Assembly repeated the said Act and in its place re-enact the same and passed the East Pakistan Factories Act,1965 (Act IV of 1965) The Act was passed in the Assembly on the 5th August, 1965 and was published in the Gazette dated 1st September,1965.<href=”#_ftn9″ name=”_ftnref9″ title=””>
After liberation of Bangladesh on the 26th March,1971 the Act remained in force. No major change in the Act has yet been made. The laws which this Code has replaced were made mostly during the British Colonial regime and Pakistan period and they were as many as 50 in number. In many cases these laws were outdated, scattered, inconsistent and often overlapping each other. In 1992 a CodeCommission was formed by the Government of the day which examined 44 labour laws and recommended to repeal 27 laws and it prepared a draft Labour Code in 1994. This draft of Labour Code,1994 underwent series of changes in its vetting stages and finally the Bangladesh Labour Code 2006 was passed by the Parliament on October 11,2006.The Bangladesh Labour Code 2006 is one of the very recent laws with major overhauling changes in the field of labour legislation. <href=”#_ftn10″ name=”_ftnref10″ title=””>
Introducing Bangladesh Labour Code 2006
3.1 Repeal of the Previous Laws
The British colonial regime and Pakistan period there were many labour laws. In many case these laws were some words like ‘worker’ were outdated, scattered, inconsistent and other ‘employee’ ‘owner ’ ‘employer’ etc had different overlapping each other meanings under different laws. As a result sometime many problem. So in 1992 a Codecommission was formed by the government of the day which examined 44 labour laws and recommended to repeal 27 laws and it prepared a draft Labour Code in 1994. This draft of Labour Code ,1994 under went series of changes in its vetting stages and finally the Bangladesh Labour Code 2006 was passed by the Parliament on October 11,2006. The Bangladesh Labour Code 2006 is one of very recent laws with major overhauling changes in the field of labour legislation. Section 353 of the code has repealed 25 previous labour related laws. The following laws are here by repealed.
1. The Workmen’s Compensation Act, 1923 (VIII of 1923).
2. The Children (pleading of labour) Act, 1933 (II of 1933).
3. The Workmen’s Protection Act, 1934 (IV of 1935).
4. The Dock Labourers Act, 1934(XIX of 1934).
5. The Payment of Wages Act, 1936(IV of 1936).
6. The Employer’s Liability Act, 1938(XXVI of 1938).
7. The Employment of Children Act, 1938(XXVI of 1938).
8. The Maternity Benefit Act, 1939(IV of 1939).
9. The Mires Maternity Benefit Act, 1941(XIX of 1941).
10. The Motor Vehicles (Drivers) Ordinance, 1942(V of 1942).
11. The Maternity Benefit (Tea Estate) Act, 1950 (xx of 1950 ).
12. The Employment (Records of service ) Act, 1951 (XIX of1952).
13. The Bangladesh plantation Employees provident Fund ordinance, 1959(XXXI of 1959).
14. The Coal Mines (Fixation of Rates of wages) Ordinance,1960 (XXXIX of 1961).
15. The Road Transport Workers Ordinance, 1961 (XXVII of 1961).
16. The Minimum Wages Ordinance, 1961(XXXIV of 1962).
17. The Plantation Labour Ordinance, 1962(XXIX of 1962).
18. The Apprenticeship Ordinance, 1962(IVI of 1962).
19. The Factories Act, 1965(IV of 1965).
20. The Shops and Establishment Act, 1965(VII of 1965).
21. The Employment of Labour (standing orders) Act, 1965 (VII of 1965).
22. The Companies Profits ( workers participation) Act, 1968 (XII of 1968).
23. The Industrial Relations Ordinance, 1969(XXII 1969).
24. The Newspaper Employees (condition of service) Act, 1974(XXX of 1974).
25. The Dock Workers (Regulation of Employment) Act, 1980 (XVII of 1980).<href=”#_ftn11″ name=”_ftnref11″ title=””>
3.2 Introducing Bangladesh Labour Code 2006
There are still 25 valid laws dealing with labour and industrial issues have not been repealed or consolidated and as such the Bangladesh Labour Code, 2006 although a consolidated Act has nor consolidated all the laws in the filed. Furthermore, although the name of the law is Bangladesh Labour Code, in fact, it is not a code rather a consolidating legislation only.
1. Prior to the promulgation of the Bangladesh Labor Code 2006, the total number of Acts and Ordinances in this field was fifty, of which:
• 15 were enacted during the British regime
• 23 were enacted during the Pakistan regime, and
• 12 were passed after the independence of Bangladesh
2. In accordance with the ratified ILO conventions and with a view to creating a constructive environment, for the elimination of the imbalances that prevailed in the issues regarding development of congenial relations between workers and employers, information about existing labor and industrial laws were sought from concerned stakeholders, of both home and abroad. Increase of productivity, the enhancement of favorable environment for investment, the acceleration of industrialization in the context of the changed environment during the post independence period, were also studied.
3. To meet the aforesaid demand, the government formed a National Labor Law Commission in 1992, with a view to enacting a modern, up dated and united labor law, headed by Justice Mohammad Abdul Quddus Chowdhury, along with 37 other members representing every concerned quarter.
4. After two years of exhaustive study, the Commission submitted its report along with a draft of the unified modern and updated labor law in 1994.
5. Subsequently, the draft was reviewed by ILO and numerous Employers and Workers
Associations and other human rights organizations in phases for the last twelve years, and at last it was promulgated on the 11th of October 2006 as “Bangladesh Labor Law 2006” under the consensus of all the parties concerned.
6. The salient features of the newly promulgated law are as follows:
• One single modern updated code instead of the 25 scattered Acts and Ordinances
• There are 354 sections in 21 different chapters in the Law
• The scope and applicability of the law has been extended and definitions of different terms have been clarified. Ambiguity regarding the age limit of a child has been eliminated. According to this law any person below the age of 14 shall be treated as a child.
• The issuance of an appointment letter and the Identity card for a worker has been made compulsory.
• Death benefits have been provided for even cases of normal deaths or in cases of any deaths due to causes other than accidents during the continuance of the service.
• The usual retirement age has been scheduled at 57 and at that time the worker shall be entitled to get all the benefits as are applicable under this law. Even the case of a workers’ voluntary retirement, after his continuous service of 25 years 2 with his employer, is also a subject which will come under this retirement benefit.
• Child labor is prohibited even in non-hazardous regular work in an establishment. Appointment of adolescent and female workers is prohibited during the nights and in dangerous occupations.
• Maternity benefits have been increased to 16 weeks and the qualifying service length has been decreased to six months, but this benefit is limited only up to the birth of two living infants.
• Special importance is given on occupational health and safety and working environment. There are 78 sections exclusively on it out of a total of 354 sections in the law.
• Maintenance and preservation of safety record books and introduction of group insurances have been provided for.
• Time limits for payment of wages have been determined and a provision has been made to realize the unpaid wages through the court.
• Provisions have been made for the declaration of sector wise minimum wage rates after an interval of every five years.
• Amount of compensations in cases of death or injury because of accidents at the workplace has been increased. For deaths, the amount of compensation has been ascertained at Taka. 100000.00 per worker and for a permanent total disability, the amount fixed is Taka 125000.00 per worker. In case of an accident that may happen due to employer’s negligence, the compensation amount shall be double.
• No one, other than those in the pay-roll of the employer, shall be the member or officer of an establishment based basic trade union.
• The purview of unfair labor practices on the part of the workers, employers or the trade unions has been extended.
• Determination of CBA from amongst the establishment based basic trade unions has been made easier and the period of such determination has been fixed within a time frame of 120 days.
• Industrial or craft Federations of trade unions, under certain conditions, have been given the jurisdiction to act as CBA
• Provisions have been made to form compulsorily participation committees in every establishment where 50 or more permanent workers are engaged.
• Labor courts shall be the only courts to adjudicate all issues under labor law and all appeals shall lie to the labor appellate tribunal
• Time has been fixed for the adjudication of each and every stage of the cases in the labor court to accelerate the procedure
• Only the workers employed in an establishment, irrespective of their designation and wage scale are entitled to get the benefits of the participation fund and the welfare fund developed out of the profit of the company.
• Provisions for provident funds have been made for the establishments run under the private management.
• The punishments for the breach of the provisions of the labor law have been revised appropriately. Imprisonment has also been provided for along with fines.
• A provision has been made to form a “National Industrial health and safety council” to enact the national policy to ensure the occupational health and safety at the enterprise level.
• Provision has been made for the strict implementation of the “Equal pay for equal amount of work” policy of ILO convention
• Any discrimination or indecent behavior towards female workers has been prohibited under the new law.
Arrangements for training on law was never provided for but now in this new law, training arrangement is made compulsory for the laborers. The worker participating in the training program shall be deemed to be in his or her official duty during continuance of such training. This unified law is applicable with equal force to all the industrial and commercial establishment as previous Shops and Establishment Act-1965 and other labour laws has been abrogated by the promulgation of this new Labour Code.<href=”#_ftn12″ name=”_ftnref12″ title=””>
3.3 Application of Bangladesh Labour Code, 2006
According to the Bangladesh Labour Code, 2006 see-1(3) defines save as other wise specified close where in this code, it shall apply to the whole of Bangladesh. And According to see-1(4) defines, Hot with standing anything contained in sub-section (3), this code shall not apply to-
- offices of or under the government
- Society printing press.
- Ordinance factories.
- Establishments for the interment or care of the sick, inform aged, distillate , mortally deranged, orphan abandoned worn an or child or widow which are not run for profit or gains.
- Shops or stalls in any public exhibition or show in so far as such shops or stalls deal in retail trade which is solely subsidiary or ancillary to the main purpose of such exhibition or show.
- Shops or stalls in any public fair or bazaar held for religious or charitable purpose;
- Educational, training or research institutions;
- Hostels and messes not maintained for profit or gain;
- In respect of Chapter-II, any shop or commercial or industrial establishment owned and directly managed by the Government where the workers are governed by the Government Conduct Rules.
- Workers whose recruitments and conditions of service are governed by laws or roles made under Articles 62, 79, 113 or 133 of the Constitution, except, for the purposes of Chapters Twelve, Thirteen and Fourteen, workers employed by the –
a. Railway Department;
b. Telephone, Telegraph and Postal Departments;
c. Public Works Department;
d. Public Health Engineering Department;
e. Bangladesh Government Press.
- workers employed in any establishment referred to in clauses (b), (c), (d), (e), (f), (g) and (h), except, for the purposes of Chapters Twelve, Thirteen And Fourteen, workers other than teachers, employed by any university;
- Ocean going vessels, except for the purposes Chapter Sixteen.
- Agricultural farms where less than ten workers are normally employed;
- Domestic servants; and
- Establishments run by owners with the aid of family members and without employing workers for wages.<href=”#_ftn13″ name=”_ftnref13″ title=””>
The Changes brought by Bangladesh Labour Code 2006
All relevant laws are now included in one document. On the whole, this new legislation constitutes a progress with regards to the previous legal framework. Improvements include the extension of maternity leave from 12 to 16 weeks, and the facilitation to create trade unions in specific sectors. Also, all prosecutions for offences in the Labour Code 2006 must now take place in the Labour Court – rather than in the Magistrates Courts as before – and the court should follow the Criminal Procedure Code (section 313(1)). Complaints can be lodged either by an inspector [Section 319(5) allows an inspector to “lodge a complaint to the Labour Court with regard to commission of any offence”] or an “aggrieved person or trade union” – but they must be done so within six months of the commission of the offence (section 313(2)12. However, several actors pointed to the fact that the new Codeis still weak on many issues. On Working hours for example, the legislation is weak: it fixes the working hours of a worker to a maximum of 10 hours a day, but specifies that “exception may be allowed in general or in particular for any establishment with the conditional permission”.
4.1 Remuneration and other Benefits
1. Previous law excluded the gratuity on discharge from the wages of a worker but the new law includes it as part of the wages.
2. The word “gratuity” was never defined anywhere in the earlier Codebut the new law defines it properly in section 2 (10) where it is defined as the amount of the wages of at least 30 days payable to a worker who worked in a factory not less than 6 months at the expiry of her/his employment.
3. Previous law provided only the exclusion list with the definition of the wages but the present law provides both the inclusion and exclusion lists to make a complete sense.
4. Provident fund is considered to be the wages and is payable within 30 days of the expiry of the employment.
4.1.2 Fixation of wage periods and time of payment of wages
The person responsible for the payment of wages of the worker shall fix a period of wages and accordingly pay it as per the time given in the law. Section 122 guides the paymaster to fix a period not exceeding 30 days and section 123 provides that payment shall be made within seven working days of the expiry of a wage period.
There is a big change. In previous law, where there is less than 1000 workers employed, the employer had to pay before the expiry of the 7th day from the end of the wage period and in the railway or any other factory or industry , the employer had to pay before the expiry of the 10th day from the end of the wage period.
4.1.3 Deductions from the wages
Section 125 of the Labour Code 2006 deals with the deductions made from the wages of the workers. Following are the deductions valid under the present law:
1. Fines under section 25 (section 25, however, states that no fine shall be allowed more than one-tenth of the total wages receivables by a worker in a particular wage period and no fine for a worker aged below 15);
2. Deductions for absence from duty;
3. Deduction for damage or loss of goods entrusted upon the worker in her/his custody;
4. Deduction for house accommodation supplied by the employer;
5. Deduction for such amenities or services supplied by the employer as the government has authorized;
6. Deduction for recovery of advances or for adjustment of overpayments;
7. Deduction for Income tax payable by the worker;
8. Deduction for subscription to and for repayment of advances from the provident fund.
9. Deduction for the payment to the co-operative societies approved by the government.
Up to these 9 points the new law remains exactly the same as section 7 of the earlier Payment of Wages Act 1936, but the new law added more deductions like deductions for the subscription of CBA Union in check-off method; deduction for any welfare fund formed by the employer and authorized by the Government.
4.1.4 Grievance procedure in case of illegal deductions or delay in payment
Application by the worker her/himself or her/his successor in case of her/his death; Application to the labour court only; Application within 12 months from the date of such illegal deduction or the date of the payment being due, but the court can take it even after the expiry of the said period; Up to 25% as compensation on the wages due at that time may be ordered; No court fee is payable by the aggrieved worker; rather, if the worker wins the case it is the owner who shall reimburse the payable court fees; Single application on behalf of all the workers so aggrieved.
At present, the Chairman of the Labour Courts is only eligible to hear the cases; previously, the limitation period was only six months, now it is twelve months.
4.1.5 Provident Funds for workers
Section 264 of the Labor Law 2006, provided for an establishment of a Provident Fund if so demanded by the three fourths of the total workers employed in a factory. The section also provided for the following:
1. It may constitute for the benefits of the worker in the private sector.
2. Such provident fund shall be constituted prescribed by the rules.
3. The Government may make rules for constitution of provident fund.
4. Such Provident Fund shall be held and administered by a Board of Trustee.
5. Such Board of Trustee shall consist of an equal number of representatives of the employer and workers employed in the establishment, and a person nominated by the
Government shall be its Chairman.
6. Representative will be nominated by the employer and collective bargaining agent.
7. The above nomination shall be under the supervision of the Director of Labour.
8. All the representatives shall hold office for a period of two years.
9. A permanent worker shall subscribe to the fund not less than seven percent and not more than eight percent from his basic wage unless otherwise mutually agreed.
10. In the case of provident fund one fourth of total workers will claim in writing to their employer.
11. In order to provide provident fund the employer will establish rules within six months and the fund shall start by this period.
12. At least half of the total accumulations shall be invested for the purpose of any of the following, namely:
a) I.C.B. Mutual Fund Certificates.
b) I.C. B. Unit certificates and
c) Government securities including Defence and Postal Saving Certificates
13. The cost of maintenance shall be borne by the employer.
14. The accounts of provident fund shall be audited.
15. A statement of account together with audit report shall be forwarded to the director of Labour within one month of the submission of audit report.
16. Where the government is satisfied, he may by order exempt the establishment from the operation of this section.
17. A provident fund shall be deemed to be a public institution for the purposes of the
Provident Funds Act, 1925 (XXIX of 1925).
18.Establishment in private sector means an establishment which is not managed directly by the Government.
4.1.6 Death benefit
If any worker died after completing 3 (three) years continuous service with an employer, the worker shall be entitled to get benefits for 30-days’ wages for each completed year or service, or six-months thereof, or gratuity, whichever is higher. The worker shall get this benefit in addition to her/his other emoluments during the retirement.
This is also a new addition to the Code as previously no Code has provided for the death benefit except for the Wage Board award for the Newspaper worker.
4.2 Working Hours and Leaves
Section 100 makes a provision of 8 working hours a day for an adult worker, but an adult worker may work 10 hours a day provided all the conditions of section 108 have been fulfilled. According to that section, the employer is required to pay the worker, overtime, double the rate of her/his usual wages. i.e. basic & dearness allowance, if any. The employer is also required to maintain an overtime register as per the law. Daily hours has been reduced to 8 hours-a-day from previous 9 hours-a-day in different Acts that have been repealed.
4.2.1 Weekly hours
The new law makes a provision of total 48 (forty eight) working hours for a worker, but it can be extended up to sixty hours, subject to the payment of overtime allowances as per section 108 of the law. However, an average of 56 working hours per week in a year for a labour must not be exceeded under any circumstances. But the new law makes a provision for exemption approved by the government if it thinks so fit. <href=”#_ftn14″ name=”_ftnref14″ title=””>
Exemption clause has been inserted in the new law, by which the government is empowered to exempt any of the factories for the purpose of this rule for a maximum period of six months at a time.
4.2.2 Festival holiday<href=”#_ftn15″ name=”_ftnref15″ title=””>
1) Every worker shall be entitled to eleven days festival-leave for every calendar year. The employer shall, at the beginning of the year, fix the day and date of such leaves.
2) The employer may require any worker to work on a festival holiday provided that two days additional compensatory holidays with full pay and one alternative holiday should be given to her/him under section 103.
Festival holiday has been increased by a day in the new Code2006.
4.2.3 Sick leave <href=”#_ftn16″ name=”_ftnref16″ title=””>
All workers employed in a factory shall be entitled to get 14 (fourteen) days sick leave with full average wages. Provided, such a leave shall not be granted unless a Registered Physician employed by the employer or any other Registered Physician has certified her/his illness.
Earlier laws provided for the same period of leave with half average wages, whereas, the new law makes provisions for the sick leave to be one with full average wages. The requirement for certification by a Registered Physician does not exist in the earlier laws. However, it has been added to the new law.
4.3 Maternity Benefits
4.3.1 Maternity leave
In section 46 of the new Labour Code 2006 provisions have been created for maternity leave of 16 weeks (8 weeks before and 8 weeks after the delivery). But the law also makes a provision that no worker shall be entitled to receive the benefit unless she has served under the owner for a minimum period of six months prior to the notice of the probability of the delivery.
Prior to this, Section 3 of the Maternity Benefits Act, 1939 provides maternity leave of 12 weeks (6 weeks before and 6 weeks after the delivery).
The new law increases the maternity leaves to sixteen weeks from twelve weeks and decreases the duration of the qualifying service period – for availing the benefit – to six months from 9 months. Also, no maternity benefit shall be payable to any woman if at the time of her confinement she has two or more surviving children.
4.3.2 Procedure of payment of the maternity benefit
Three options are open to the mothers as per section 47 of the new Labour Code:
- The owner shall pay the total benefits payable for the preceding 8 weeks within 3 days from the submission of the certificate of the probability of delivery (childbirth) by a Registered Physician and shall pay the remaining amount after three working days of the submission of the proof-of-delivery.
- The owner shall pay the benefits payable for the preceding 8 weeks including the day of the delivery within 3 days from the submission of the proof of delivery and pay the remaining within the next eight weeks after the proof of delivery is submitted
- The owner shall pay all the benefits payable within 3 days from the submission of the proof-of-delivery to the owner.
Previously the procedure was guided by the Maternity Benefits Act. 1939. Section 5 of the aforesaid Act provided more stringent payment procedure as there was the provision of payment within 48 hours after the certificate from any physician was submitted, whether there remains any working day or not.
Changes have been made in favor of the management, as the management is required to pay the benefit within three working days. As per the earlier law, it was binding upon the management to pay the benefit within 48 hours only.
4.4 Employment of Adolescent
Section 34 of the new Labour Code creates a bar on the appointment of children in any establishment. The section states as follows:
• No child shall be required or allowed to work in any factory.
• An adolescent who has completed fourteen years of age shall not be required or allowed to work in a factory unless:
1. A certificate of fitness granted to her/him under section 68 is in the custody of the
manager of the factory;
2. Such adolescent carries a token – giving a reference to such certificate while he is at work;
3. Nothing in this section shall be applicable to an adolescent employed in any occupation or in a factory as an apprentice for vocational training;
4. If the Government considers appropriate, it may as well waive the enforcement of the pre-conditions of the employment of an adolescent for a particular period.
In the present law child means a person who has not yet completed his fourteen years of age. Adolescent means a person who has completed her/his fourteen years but has not completed her/his eighteen years of age.
In the earlier laws, the term “child” was used to mean a person who had not completed 16 years of age and the term “Young Person” was used to mean and include both the child and adolescent. Under the earlier law, even a child could have obtained a fitness certificate to get a job in a factory. But in the new law, child means a person who has completed her/his fourteen years of age and adolescent means the person who has completed sixteen years and has not completed eighteen years of age. The present law specifically prohibits employment of children and makes a provision for fitness certificates for the adolescent only.
Exception:A child who has completed twelve years of age, may be employed in such light work as not to endanger his health and development or interfere with his education. Provided that the hours of work of such child, where he is school going, shall be so arranged that they do not interfere with his school attendance. (as per section 44)
4.4.1 Restriction of appointment of adolescent in certain work
Section 39, 40 and 42 of the new Labour Code reports some activities for which the employment of the adolescent is strictly prohibited. As per the above mentioned sections, the employment of the adolescent are strictly restricted for the following activities:
• Cleaning of the machinery while it is in motion.
• Lubrication or for other adjustment operation of the machinery while it is in motion.
• Any work in-between the moving parts of a machine.
• Any work under ground or under water.
4.5 Definition of Employer
The Term Employer is defined in section 2, Subsection (XLIX), previously the term was defined in different law for different purposes like for payment of wages, for Employment, for Factories and for Shops and establishment. But the new law provides a single definition to cover all the purposes. As per the above section any person in relation to an establishment who employs workers therein and includes:
• An heir, Successor, Assignees, Guardian or legal representative of such persons
• Manager or the person responsible for the management and control of the establishment
• The authority appointed by the government or the head of the Ministry or division concerned for the State owned establishment
• Officer appointed for the purposes or where no such authority is appointed the CEO of the Local authority for the establishment run by the local authority.
• For any other establishment, the Owner of the establishment and every director, Manager, Secretary or the agent of such persons
• The person in occupation of the establishment or the person in ultimate control of the establishment
4.6 Forced labour
Forced labour is strictly prohibited by the Constitution of the Peoples Republic of Bangladesh. Therefore, any Law approving forced labour is void ab initio as per the constitutional framework of legislation in Bangladesh. Article 34 of the Constitution of the Peoples Republic of Bangladesh stated as follows:
—-“All forms of Forced Labour are prohibited and any contravention of this provision shall be an offence and shall be punishable in accordance with the Law”
Again, the two ILO fundamental rights Conventions (nos. 29 and 105) also addresses the abolition of forced labour, and Bangladesh has ratified these two conventions long time ago. But, this constitutional guideline is still ignored in the new Codeas the Law has not defined the word forced labour in it and has not provided for the punishment and procedure thereof. 15 Therefore, forcing the worker to work in a factory for days together continuously by the factory owners against their intention should be strictly prohibited and law should address this issue as per our Constitution and ratified ILO Conventions.
Any discriminatory behavior on the basis of sex, color and creed is totally prohibited in any law in Bangladesh. Articles 27 and 28 have provided a guideline to the legislator to make the discrimination free environment in every walk of national life. Section 345 of the Code is, however, noteworthy in this connection. The section is stated as follows: “In determination of the wages for a worker or in fixation of the minimum wages equality irrespective of the sex of the worker, shall be maintained. No discrimination in this regard shall be tolerated by law”.
Article 27 of the Constitution is stated as follows:
—-“All citizens are equal before Law and are entitled to equal protection of Law”
Article 28 of the Constitution is stated as follows:
—-“The State shall not discriminate against any citizen on the grounds of religion, race, caste, sex or place of birth.”
Therefore, discrimination on the grounds of any of the above issues is prohibited in the country.
4.8 Classification of Workers
Section 4 of the new Labour Code of 2006 classifies the workers into following classes:
b) Badlies (transfer workers)
e) Probationer and
There is no change in the classification of labour. But in the calculation of the period of probation, the earlier laws included all the leaves and strikes and lockouts during that period which the new law has ignored and refrained from specific provisions in this regard.
4.9 Calculation of Continuous Service
Section 14 of the Code provides for the method of the calculation of the continuous service period of a labour for the purpose of this law in the following manner:
• If the actual number of the working days of a worker is 240 during the previous twelve calendar months he or she shall be deemed to be worked for a continuous period of one year.
• If the actual number of the working days in the previous twelve calendar months is 120 days s/he shall be deemed to be employed there for a continuous period of six months. For counting continuous service, the following issues will come under consideration:
• Days the worker was laid off;
• Days of leave with or without wages due to accident or illness;
• Non-working days due to legal strike or illegal lock out;
• Days on maternity leave for a female worker.
No significant change has been noticed in this purpose except for the inclusion of the number of days’ not-working due to legal strike or illegal lockout. And for calculation of six months of continuous employment the number of actual working days is 120, which was previously 140.
Section 23 of the Code law deals with the dismissal of the worker on the ground of misconduct and conviction. The section makes room for the employer to dismiss a worker without serving her/him a notice or the payment in lieu thereof for the following two grounds:
If the worker is convicted by any criminal court If her/his misconduct is proved under section 24 of the Code. Misconduct, as defined in that section, is:
Willful insubordination, alone or in combination with others, to any lawful or reasonable order;
Theft, fraud or dishonesty; Receiving or giving bribes;
Habitual absence, without leave, for more than ten days;
Habitual breach of any rule or law applicable to the establishment;
Riotous or disorderly behavior;
Habitual negligence or neglect of work;
Frequent repetition of a work on which fine can be imposed;
Resorting to illegal strike or go slow or instigating others to do so;
Falsifying, tampering the official document of the employer.
The new law makes a provision of lighter punishment in case of the misconduct. Sub section 2 of section 23 says: Any worker, against whom misconduct has been charged and proved, may be punished by any of the following punishment other than dismissal from the job: Removal Demotion to lower grade; Withholding promotion for at least one year; Withholding increment for an year; Imposition of fine; Temporary suspension without wages; Censuring and warning;
4.11 Occupational Health, Safety and Welfare
Section 62 deals with the provisions for measures to be taken by a factory to avoid dangers and damage due to fire. The section provides for the following:
1. At least one alternative exit with staircases connecting all the floors of the factory
building as described in the rules for each and every factory.
2. No door affording exit can be locked or fastened during the working hours so that they can be easily or immediately opened from inside.
3. The doors affording exit must be open outwards, unless it is sliding in nature, if the door is between two rooms it must open in the direction of the nearest exit.
4. Marking in red letter in proper size, in the language understood by the majority of the workers, on such doors, windows or any alternative exit affording means of escape in case of fire.
5. There shall be an effective and clearly audible means of fire-warning system to every worker.
6. There shall be a free passage-way giving access to each means to escape.
7. Where more than ten workers are employed other than in the ground floor, there shall be a training for all the workers about the means of escape in case of fire.
8. There shall be at least one fire-extinction parade and escape-drill at least once a year in a factory where more than fifty workers are employed.
The new law makes a provision of an alterative staircase affording means of escape connecting all the floors. Fire extinguishing and escape parade shall be arranged at least once every year.
4.11.1 Safety of building and machineries
Section 61 of the Labour Code 2006 provides for the measures to be taken as regards the safety measures related to building and machineries. The present law entrusts everything to be done in this regard with the Inspectors.
The section goes as follows:
- If it appears to an Inspector that any building or part thereof or any passageway or machine of the factory is in such a condition which is injurious for the life and health of the workers working therein, the Inspector may issue an order to the owner of the factory to take necessary steps immediately within the specified time therein.
- If the Inspector is of the opinion that the building or any machine is seriously dangerous for the life of the worker, he shall issue an order to repair or alter that immediately failing which, to not run the factory unless and until the building is so repaired or replaced.
Earlier laws didn’t empower the Inspector to stop the operation of a factory in a risky building but the present law has given sufficient discretion on the part of the Inspectors to take necessary steps so as to ensure building security and the like.
Section 89 of the Code provided the following:
1. First Aid boxes or cupboard equipped with the contents prescribed by rules should be provided in every establishments
2. A well equipped first aid box or cabinet for every 150 labour
3. A person, who has to be always available in the factory, trained in first aid knowledge assigned for every first aid box
4. Notice regarding the availability of that person in every working room and a special badge issued for that person
5. An ambulance and a well-equipped dispensary for every 300 workers employed in a factory.
The facility of ambulance and dispensary has to be provided by the owners of the factories in which at least 300 workers are employed. Previously, this facility was required for factories with a minimum of 500 workers.